Monday, October 27, 2014

Mosley taken care of?

The government's Bill C-44, introduced in parliament today, should take care of the difficulties CSIS and CSEC have had in monitoring Canadians abroad since Justice Richard Mosley's 2013 order clarifying the scope of what are known as 30-08 warrants. (The bill also has other provisions, but they are not addressed here.)

By making it clear that CSIS is authorized to conduct its security investigations outside of Canada as well as inside Canada, the new provisions should remove any legal impediment to CSIS and CSEC asking Canada's Five Eyes allies to assist those monitoring operations.

At least, that's my take as a non-lawyer on the new provisions. I'll update this space if expert opinion is different.

One question I have: Since communications that take place entirely outside of Canada are not "private communications" as defined by the Criminal Code even when Canadians are participants in those communications, does this mean that CSIS will now be able to collect Canadian communications that occur abroad without any judicial warrant at all? And, if so, that CSEC through its Mandate (c) power and the Five Eyes allies will be able to assist such collection regardless of whether CSIS has a warrant?

It may well be that the Charter protection against unreasonable search and seizure precludes warrantless monitoring of Canadian communications wherever they take place, whether or not they are technically considered "private communications".

But unless that's an obvious and uncontroversial fact that is well known among legal experts—or some other obvious prohibition applies—it strikes me that the bill's provisions ought to be clarified in that respect.

[Update 28 October 2014: Law professor Craig Forcese assesses the new provisions here, specifically addressing the question of whether a warrant is or isn't required. It doesn't look like there's a simple answer, and Forcese comments that "it would be nice to have some language in the bill specifying in greater detail the trigger for seeking warrants in the first place." Go read the whole piece.]

Legal aspects aside, it is also worth remembering that questions will still remain about how well the privacy (and safety) of Canadians is protected when information about the Canadians that CSIS wants to monitor is shared with Canada's allies.